Volume. 6 Issue. 24 – June 29, 2022

In this week’s edition we take a “deep dive” into a matter wherein the Tribunal saw fit to deem incurred $166K in proposed home modifications. While the insurer had eventually approved well after the fact, they were levied a 25 % award for the unreasonable withholding of same.

The Tribunal found the insurer “did not fulfill its responsibility to review its assessments with a critical eye to ensure that they were medically sound”. Together with the significant gaps of months to years in handling led to this conclusion.

Reason Codes Are Here – Added Layer of Understanding!

Exciting News! Search and Filter by Reasons

Reason codes add a deeper layer of understanding on the reason for the decision and associated issues in dispute. This added value is included in all subscription levels at no extra cost.

Try It Now!

Book your walk-through with an inHEALTH team member by emailing service@inhealth.ca or send us a message through Live Chat!

Tribunal Deems Incurred $166K and Levies 25% Award

$166K Deemed Incurred + 25% Award – J.T deemed CAT as the result of injuries sustained in a September 2013 accident, sought numerous benefits from Certas, including $166,437 in home modifications, alternatively $839K for the purchase of a new home, and ongoing housekeeping assistance.

Ultimately the Tribunal, in 19-001148 v Certas, deemed the $166,437 as incurred, levied a 25% award, found J.T. not entitled to the home purchase, however was entitled to housekeeping assistance from his wife, who was also providing 24/7 ACB support. J.T. sought to increase the home modification claim to $228K, citing inflationary pressures, however the Tribunal agreed with Certas that it would be procedurally unfair to allow this aspect to proceed.

Further, the Tribunal noted that Certas had for a fact approved the $166K in April 2020, rendering this as a nonissue as J.T. had sufficient opportunity to incur same prior to the hearing.

The accident in question involved a collision between a two – tiered bus and a Via train, that resulted in multiple casualties, with J.T. witnessing the death of the bus driver and several passengers, including his bus mate. As it happens, J.T.’s residence is proximate to Via train tracks and following the accident he regularly experienced panic attacks upon hearing the sound of a coming train, with the noise also keeping J.T. up at night. To that end, a key component of any proposed modifications was to provide sound insulation to the rear of the residence so as to mitigate the situation.

In response to an initial treatment plan from February 2017 for just in excess of $175K for home modifications, Certas responded by way of a February 2017 EOB denying same, highlighting various medical records suggested as conflicting with the recommended modifications. Examples cited included the fact that J.T could ambulate with a cane, therefore he would not require stair lifts, in addition to a report indicating that J.T. exhibited symptoms of pain magnification and had no functional limitations. The Tribunal then noted it to be unclear as to what transpired between the date of the EOB and the date the IEs were completed June 2017, with reports not issued until November 2017. Certas’ assessors opined home modifications totalling $80,700 were reasonably necessary, although the Tribunal indicated that there did not appear to be an EOB advising as to this approved amount.

Experts for J.T. countered, in December 2017, that Certas’ proposal “would not meet the applicant’s safety and accessibility needs and that the applicant would be forced to accept compromises in function, lifestyle and safety.” It was then not until one year later, in December 2018 (no explanation provided for the delay) that Certas’ assessor provided an addendum report. In regards to the need for sound suppression, the assessor noted that J.T. was in possession of noise canceling headphones, therefore “if he were to use these when the train comes by he could then go to any room in the home.’ Further, the assessor indicated (although no supporting evidence was introduced) having confirmed with Via Rail and CN rail that they no longer used the tracks proximate to J.T’s residence, essentially rendering the matter moot. In February 2019, Certas approved by way of an updated EOB a revised amount of just over $110K.

In response, J.T.’s assessor produced another report in October 2019, this time with a revised amount of $166,437, an amount as noted above that Certas eventually approved in April 2020. However, by November 2020 J.T. had decided not to modify the existing residence, given concerns about the long-term use, maintenance of the stair lifts and sound proofing the rear windows. J.T.’s treating psychologist recommended a move to a bungalow in a quieter location, with an OCF18 submitted for the purchase of a new home totalling $657K, subsequently revised to $839K.. J.T. had in fact sold the original residence in Spring 2021, and temporarily moved into a house owned by his daughter.

As a result, the Tribunal found “the fact that the original home which the OCF-18 was meant to address no longer belongs to the applicant raises the question of whether the applicant is still entitled to it. The answer is yes, as I deem the OCF-18 incurred pursuant to s. 3(8) of the Schedule. I find the evidence supports that the respondent unreasonably withheld the benefit”.

The Tribunal found that the submission of J.T. recommending home modifications “was reasonable and necessary at the time it was submitted”, finding “the tone of the respondent’s initial EOB dated February 24, 2017 puzzling.” While accepting that J.T. was rendered CAT, “the EOB seemed to challenge that the applicant had any functional limitations as a result. For example, the EOB references the report of Dr. Simard already referenced above and other records challenging whether the applicant has any functional impairments. I find the adjuster’s perspective wholly inconsistent.”

In addition, the Tribunal found Certas’ assessor’s recommendations regarding sound insulation to be unreasonable, as this “would restrict the applicant’s ability to access his home and would result in social isolation.” As a result, Certas “failed in its obligation to fairly adjust the applicant’s claim by relying on this flawed opinion based on all of the medical documentation in its possession…the respondent did not call an adjuster to testify to justify their rationale for why they accepted (Certas’ assessor’s) report when there were more practical, medically sound opinions to refute it.” Certas “did not fulfill its responsibility to review its assessments with a critical eye to ensure that they were medically sound”. In conjunction with significant gaps in handling (months to years), the Tribunal deemed the OCF18 as incurred.

With respect to the purchase of a new home, the Tribunal denied same, noting the obligation of Certas to underwrite any such purchase only up to the costs of proposed modifications. J.T. also sought housekeeping benefits, being provided by his wife. Certas submitted that J.T.’s wife “cannot provide “additional” housekeeping services, while at the same time providing 24-7 supervisory attendant”. The Tribunal however found that one could in fact supervise a person and ensure that their basic needs are met while at the same time completing housekeeping tasks. Further, the Tribunal agreed with J.T. that there was “no reason in law why the same economic loss proven in relation to the attendant care issue is not applicable to the economic loss sustained in relation to the housekeeping benefit…it does not need to be proven twice.

Finally, the Tribunal levied an award against Certas, given the unreasonable withholding of payment for home modifications. Certas made no submissions at all regarding same. The Tribunal concluded that “The applicant has been deemed catastrophically impaired and I consider him to be an extremely vulnerable member of society. Therefore, based on the applicant’s condition, the amount of time which transpired from when the OCF-18 was submitted to when it was finally approved, and the unreasonable basis for the respondent’s delay, I award the applicant 25% of the amount to which he was entitled.”

Access inHEALTH’s research resources through Live Chat and receive your OAR. Get It now!